| Matter of Pettus v New York State Dept. of CorrectionalServs. |
| 2010 NY Slip Op 01046 [70 AD3d 1164] |
| February 11, 2010 |
| Appellate Division, Third Department |
| In the Matter of James Pettus, Appellant, v New YorkState Department of Correctional Services et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.
Appeal from a judgment of the Supreme Court (Hayden, J.), entered July 15, 2009 inChemung County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of the Commissioner of Correctional Services findingpetitioner guilty of violating certain prison disciplinary rules.
After a prison employee received a letter written by petitioner that contained abusive andobscene language in reference to another prison employee, petitioner, an inmate, was charged ina misbehavior report with harassment and violation of facility correspondence procedures.Petitioner was found guilty of both charges following a tier III disciplinary hearing and thatdetermination was affirmed upon administrative appeal. Petitioner thereafter commenced thisCPLR article 78 proceeding challenging the determination. Supreme Court dismissed the petitionand petitioner now appeals.
We affirm. Contrary to petitioner's contention, the Hearing Officer was not precluded frompresiding at the disciplinary hearing because petitioner had named him as a defendant in anunrelated lawsuit, and the record indicates that the determination flowed from the evidencepresented rather than any alleged bias (see Matter of Partee v Bezio, 67 AD3d 1224 [2009]; Matter of Burgess v Goord, 34 AD3d948, 949 [2006], lv denied 8 NY3d 813 [2007]). We also find, particularly in lightof petitioner's admission during the hearing that he authored the letter in question, that theHearing Officer did not err in denying petitioner's request to call several witnesses whosetestimony would have been redundant or irrelevant (see Matter of Brown v [*2]Taylor, 62AD3d 1230, 1231 [2009]; Matterof Scott v Fischer, 57 AD3d 1035, 1036 [2008], lv denied 12 NY3d 705[2009]). Contrary to petitioner's contention that his outgoing mail was improperly opened inviolation of 7 NYCRR 720.3 (e) and, therefore, the letter should not have been admitted intoevidence against him, the record indicates that the intended recipient actually viewed the letterbefore forwarding it to the correction officer who authored the misbehavior report. Finally,designation of the instant infractions as tier III violations was permissible (see 7 NYCRR270.2 [B] [8] [ii]; [26] [ii]).
Petitioner's remaining contentions have been reviewed and determined to be without merit.
Peters, J.P., Spain, Rose, McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed, without costs.